Thursday, October 22, 2009
Maximum medical improvement (MMI)
In order to recover benefits for permanent disability a claimant must show a disability is permanent. A claimant may fail to recover benefits if a claimant is not at MMI or the condition itself is not permanent.
In Hoven v Sachs Electric, 2012 Mo. WCLR Lexis 145 (July 19, 2012) the Commission reversed an award of $7305 in benefits against the Second Injury Fund because claimant failed to introduce persuasive evidence that his condition was permanent. Claimant's expert provided a provisional rating that claimant's condition was permanent, but the amount of disability could change if claimant received more treatment. Claimant provided equivocal testimony about plans to pursue further treatment after reporting limited improvement following previous surgeries.
In Hoven v Sachs Electric, 2013 Mo App. Lexis 1397 (Nov. 26, 2013) the court of appeals affirmed a finding that no persuasive evidence existed that claimant's condition was permanent. The court found that a settlement with the employer did not create a presumption of permanent disability in a claim against the fund, and indicated there was no evidence the settlement itself was in evidence.
Atty: Christenson, Da-Niel
Experts: Schlafly, Lichtenfeld
This result is very similar to the court of appeals decision in Cantrell v Baldwin Transportation, in which a surviving spouse could not recover benefits because claimant was not at MMI at the time of his death. Cantrell v Baldwin Transportation, 296 S.W.3d 17 (Mo. App. 2009). Claimant injured his shoulder in December 2006, a physician recommended surgery, and claimant died from unrelated causes before the surgery in July 2007. Like Hovens, the claimant obtained a disability rating and asserted he was at MMI because his treatment was "on hold" and he was deemed at the time not a surgical candidate. The Court of Appeals affirmed the Commission's denial of benefits. The court found that the recommendation for additional surgery supported a finding that claimant had not achieved MMI and benefits had not accrued. The treating surgeon had not placed claimant at MMI, by implication, although that remains unclear from the opinion.
Additional medical treatment may undermine any expert opinions about MMI. The Commission found that the ALJ erred finding MMI in 1998 for purposes of SIF liability, when claimant had three subsequent back surgeries that improved her function. Her surgeon placed her at MMI 7 years later in 2005. Key v Aldi, 2011 MO WCLR Lexis 29.
A stipulation or finding of disability of MMI must be consistent with the records. For example, a finding that PTD disability occurred when the employer closed its plant in 2000 was not consistent when claimant continued to treat for another 4 years and the parties stipulated to 2004 as the correct date. Gruendler, ec. v Union Camp Corp., 2010 MO WCLR Lexis 127.
A stipulation must include the amount of prior disability. In one case the parties stipulated to a settlement in Kansas of $60,000 but not the prior percentage of disability, and the ALJ independently found 30% prior disability resulting in a different starting date for SIF benefits. Mayse v Jeff Honor Roofing, 2011 MO WCLR Lexis 19.